R v Gowans

[2013] NSWDC 284

District Court

New South Wales

Medium Neutral Citation:	R v Gowans [2013] NSWDC 284
Hearing dates:	9 August 2012; 26 April 2013
Decision date:	26 April 2013
Before:	Berman SC DCJ
Decision:	Impose an aggregate sentence consisting of a non parole period of 3 years with head sentence of 5 years
Catchwords:	CRIMINAL LAW - Sentence - Form 1 - Continuing attitude of disobedience towards the law - Aggravated enter dwelling with intent to commit larceny, knowing there was a person inside - Break enter and steal - Steal from a dwelling - on parole at time of offence
Legislation Cited:	Crimes (Sentencing Procedure) Act
Cases Cited:	R v Fernando(1992) 76 ACrimR 58
Category:	Sentence
Parties:	The Crown Elizabeth Tara Gowans
Representation:	Director of Public Prosecutions Aboriginal Legal Services - Offender
File Number(s):	2012/366166

SENTENCE

1. HIS HONOUR: The ultimate purpose of sentencing is to protect the community. Sometimes, indeed usually, Judges hope to achieve that objective by imposing upon offenders sentences which will deter, not only them, but others who might be tempted to offend in a like manner. But sometimes the protection of a community is best achieved by promoting an offender's rehabilitation. The idea is that if a sentence can be fashioned which sees an offender move away from a life of crime, then the result that that individual will commit no further offences achieves a great benefit to the community.

1. When Miss Gowans first appeared before me on 9 August last year there were suggestions, which I accepted, that in her case the protection of the community was best served by allowing her to demonstrate to me that she was capable of rehabilitating herself. I therefore allowed her bail under s 11 of the Crimes (Sentencing Procedure) Act. She went to a residential rehabilitation program but she broke the rules of the program and was excluded.

1. She lived with her mother for awhile, but then came back before me because it was a condition of bail that she go to that residential rehabilitation program.  I was persuaded to continue to allow Miss Gowans to have the opportunity of demonstrating to me that she could rehabilitate herself and so she went to a different residential rehabilitation program. Any hope that something positive and significant might be achieved was dashed on 24 November 2012 where Miss Gowans, after an argument she says with her boyfriend, took drugs and committed a whole series of offences for which she must now be sentenced.

1. Miss Gowans is a person who has spent a great deal of her adult life in custody because she continually breaks the law. She has demonstrated a continuing attitude of disobedience to the law. When she took the Xanax on 24 November 2012 she had been under no illusions about what would happen to her if she committed offences whilst under the influence of drugs and of course she well knew of her propensity to do precisely that, to commit offences whilst under the influence of drugs.

1. She is an adult woman and although her background which I will discuss in a little while is such that the decision as to whether she would take drugs on 24 November was made on a background of drug addiction and a lack of a proper parental supervision, the fact remains that ultimately Miss Gowans has to take responsibility for her own decisions and it was her decision to take the drugs after the argument with her boyfriend which has led to her facing a further lengthy period of gaol.

1. The initial offence that Miss Gowans committed and which first brought her before me was an offence of aggravated enter a dwelling with intent to commit larceny knowing there was a person inside. She was on parole at the time of that offence and I set out the circumstances of the offence in my remarks on sentence delivered on 9 August 2012. I will briefly repeat what I said.

1. On 15 December 2011 she entered into a home where a person was working at the time. He heard the offender's footsteps and approached her. She was clearly intending to steal from him but she said that she merely wanted to use the bathroom. She went into the bathroom and when the victim tried to prevent her leaving, she began yelling and screaming alleging that he had raped her. She then picked up a knife which the victim had been using to open mail and waived it around threatening that she would kill the victim. Eventually she ran out of the door.

1. The victim contacted police, coincidentally she had been seen running away from the scene by other police and she was arrested soon afterwards. She pleaded guilty at an early stage and so the sentence ultimately imposed upon her will be twenty-five per cent less than it would otherwise have been.

1. There are many similarities between the conduct that Miss Gowans displayed on that occasion whilst under the influence of drug with her conduct on 24 November last year. She faced a sentence for six separate matters and when I sentence her for one of those there are two other matters on a Form 1 to be taken into account. All these offences occurred over a very short period of time in the same location whilst Miss Gowans was under the influence of drugs to such an extent that she says she has no recollection of them.

1. The first offence is an offence for break, enter and steal. This was about 8.20 on that evening which was a Saturday night when the first victim a Mr Patrick arrived home. When he drove into the driveway he realised that things were amiss, in particular there were lights on inside and the rear door to his house was open. So he got out of the car and ran into the back door, as he did this he heard his front door slam. He peered into his house and saw that his house and belongings appear to have been ransacked. He checked that there was no-one left inside the house and rang the police.

1. It appears that about five minutes before Mr Patrick got home the offender had gone into his home, ransacked the place and taken some material from it. Photographs were tendered of the state of Mr Patrick's house. It is obvious that Miss Gowans cares nothing, at least under the influence of drugs, for other people's property rights. All she cares about, whilst under the influence of drugs, is getting money or getting goods so that she can sell them for money so that she can get more drugs.

1. After Miss Gowans had been discovered by Mr Patrick committing this offence, she walked a very short distance, only three houses in fact, and went into the backyard of some premises occupied by a Mr Xang and his wife Miss Han. Their children were there as well. I am to sentence Miss Gowans on the basis that she did not realise that there was anyone at home when she went into the home and stole a number of items, in particular Mr Xang's wallet, his mobile phone and his carkeys as well as Miss Han's handbag. That is an offence of break, enter and steal. She used the car keys to go to the car in the driveway and stole a GPS unit from it.

1. The next offence is on a Form 1. A few houses away Miss Gowans removed the flyscreen to the bathroom of those premises but was not able to enter the premises or take any property within. Undeterred she went to the house next door. This time she cut the flyscreen on the bathroom window and stole property consisting a toiletries bag and a bottle of cologne. So there is an offence there of damaging property which appears on the Form 1 and stealing from a dwelling for which Miss Gowans must be specifically sentenced.

1. She then went to other premises, this time a unit block. One of the residents, a Miss Jospavich, had left her keys in the front door of her unit. The offender took those keys and in the process locked Miss Jospavich and her daughter inside. Miss Jospavich heard the lock operate and so she got out of her unit through the garage. There she saw Miss Gowans crouched on the stairs. She was holding her son's Nike shoes. When she confronted Miss Gowans about this she was abused a number of times before eventually Miss Gowans threw her keys at her and walked away.

1. That is the offence of stealing from a dwelling which has the Form 1 matters attached to it.

1. The final offence involved Ms Gowans climbing over a fence, taking a flyscreen from a window and going to the front door trying to get in. Someone was home. That person heard the front door rattling. He got up and looked through the glass on the front door. He saw Ms Gowans looking through from the other direction. He opened his front door and saw Ms Gowans walk away. The householder then went to a nearby location where he found a number of items, some of which were the proceeds of the offence involving Mr Xang which I mentioned earlier.

1. The police, who had been called of course by Mr Patrick, stopped Ms Gowans on Pemberton Street at about 9.40pm. The first of her offences was said to have been about 8.15pm. When Ms Gowans was stopped, she had a large number of items representing the proceeds of some of her offences.

1. Ms Gowans has through her decisions caused a great deal of harm, not only in the past but also in relation to the offences for which I must sentence her. A large number of people have suffered, not necessarily financially but much more likely psychologically because of what Ms Gowans has done. I fully acknowledge that it was my decision to release her on a s 11 remand which has enabled her to commit the offences of 24 November 2012. Ms Gowans pleaded guilty at an early opportunity to those offences and so the sentences for those will be twenty five per cent less than they would otherwise have been.

1. I said I would speak about Ms Gowans background. It is not a happy one. It was described as "chaotic" and having read various descriptions of it, that is probably a fairly accurate description. Ms Gowans was raised in the Redfern area. Two particular issues in her home were drug use by her mother and violence by her father. Her parents split up because of her father's violence. Having been exposed to her mother's drug use from a young age it is perhaps not surprising to find that Ms Gowans herself began using drugs at a young age as well. She started using pot and alcohol at fourteen and heroin shortly thereafter. It was of course after that she started getting into trouble with the police, something which has occurred regularly over the years.

1. There have been periods, and one in particular, of abstinence by Ms Gowans. She was able to give up drugs for seven months after her son was born but DOCS became involved in relation to her son's care and after orders taking her son away from her were made final she relapsed. From time to time she has made efforts to rehabilitate herself and indeed a great deal of assistance has been provided to her. Ultimately as these facts demonstrate, the only person who can decide to rehabilitate herself is the offender. There is frankly not much more that can be done by others. I have rarely seen an offender given so many opportunities. She obviously impresses as a person who should be able to give up drugs but regrettably her history demonstrates that she does not.

1. Ms Gowans is probably under no illusions what must happen to her today. I made it clear when I first put her on a s 11 remand that a failure to take advantage of the opportunities offered to her would see her spending most of her life in jail. One day, and I hope it is soon, Ms Gowans will realise the futility of the life she has been leading and make the decision (because it is her decision to make) that she will not take drugs. Until she makes that decision the unfortunate consequence is this; She will be released from jail; She will be supervised; She will be given opportunities to rehabilitate; but she will take drugs; and she will go back to jail as a direct result.

1. In formulating the appropriate sentence to impose upon Ms Gowans, I have taken into account significantly her background. It fits the sort of background where the principles to be found in R v Fernando [1999] NSWCCA 66 are of direct application. Her decision to take drugs, her decision to commit crimes and the difficulty that she has giving up drugs have to be looked at in the light of the background to which she was exposed as she was growing up. I take into also very much in her favour that although there are a number of offences for which Ms Gowans must be sentenced, committed on 24 November last year, it was one quite discrete period of offending. That is not to say that everything was rosy up until that day but she committed no other offences whilst on the s 11 remand apart from those that I have outlined. Of course it could well be argued that her period of offending only came to an end because she was arrested by police. It is I suppose a matter of pure speculation as to what would have happened on the 25th or 26 November if Ms Gowans had not been arrested.

1. The psychological report speaks of Ms Gowans' depression. It is well documented. That means that I will impose upon her a sentence which places less emphasis on general deterrence than would otherwise be the case. And in addition the custodial sentence that must imposed will weigh more heavily upon her.

1. There was some discussion of course in submissions as the appropriate date on which to start any sentence imposed upon Ms Gowans. For reasons which I exposed during those discussions I will start the sentence on 24 March 2012. The Crown accurately pointed out some matters which might suggest that parole was revoked for a reason other than committing the offence of 15 December 2011 but matters are a bit unclear and I have to be very careful not to double count by regarding the fact that Ms Gowans was on parole as an aggravating circumstance and selecting a commencement date for a sentence which would see her double punished for the same factor.

1. I have decided to impose an aggregate sentence. Had I not done so, there would have been partial accumulation of all the sentences except that I probably would have imposed concurrent sentences for some of the matters committed on 24 November. To have failed to do so would have led to the situation where the sentences would have exceeded those appropriate by application of the totality principle.

1. Were I not to impose aggregate sentences I would have imposed the following sentences, for the offence of 15 December 2011, imprisonment for three years. For sequences 1 and 2 on 24 November 2012 I would have imposed three years. For what is described as offence 4 on the Crown's coversheet and offence 6 I would have imposed imprisonment for two and a half years taking into account the Form 1 matters on offence numbered 4 and for what are described as offences 3 and 5 on the Crown's set of summary for 24 November 2012, I would have imposed imprisonment for two years.

1. The aggregate sentence I impose consists of a non-parole period of three years to date from 24 March 2012 and a head sentence of five years. Ms Gowans is eligible to be released to parole on 23 March 2015.

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Decision last updated: 21 February 2014